North Dakota: Judge Restores Food Freedom Act

On December 10 ¹, District Court Judge Cynthia Feland put an end to one of the more ambitious power grabs by a government agency in the area of local food regulation when she ruled that the North Dakota Department of Health (NDDH) exceeded its authority by adopting rules that ban the unregulated sale of some homemade foods that the Legislature allows to be sold under the Cottage Foods Act [also known as the 2017 North Dakota Food Freedom Act (FFA)]. Under the FFA any producer can sell cottage food products directly to a consumer without regulation ². In her decision, Judge Feavel enjoined NDDH from enforcing the cottage food regulations; the department has decided not to appeal the ruling so the judgement is final. Moreover, NDDA will not be working through its allies in the state legislature to introduce legislation to amend the GGA this session, a move the department made in 2019. The filing deadline for bills in the 2021 session was January 25.

Attorneys for the Institute for Justice represented five cottage food producers challenging the rules. The case boiled down to the definition of a “cottage food product.” The FFA defines a “cottage food product” as “baked goods, jams, jellies, and other food and drink products produced by a cottage food operator”³. The only food the Act expressly bans the sale of are “uninspected products made from meat” (the sale of uninspected products from poultry is allowed if the cottage food operator slaughters no more than 1000 birds a year). The judge found that “nowhere in the Cottage Food Act is the Department of Health granted any authority to further restrict foods that can be sold under the Act.”

The cottage food regulations the department promulgated went into effect on January 1, 2020. The regulations marked the fourth time in NDDH had tried to water down the FFA since its passage ⁴. Shortly after legislation passed in 2017, NDDH issued a guidance document for the FFA that prohibited the sale of a number of foods under the FFA other than meat. Producers under the FFA didn’t abide by NDDH’s interpretation of the law; in 2018 the department followed up with proposed rules that would have again banned the unregulated sale of a number of foods legal under the FFA ⁵. When that effort failed, NDDH through its allies in the legislature introduced a bill, Senate Bill SB 2269, that as introduced would have not only prohibited the unregulated sale of a number of foods allowed under the FFA but also would have banned the unregulated sale of all drink products; the House of Representatives voted down this bill. The regulations NDDH issued at the end of 2019 banned the unregulated sale of many foods requiring time and temperature control that were legal under the FFA as well as low-acid canned foods that were also under the FFA’s definition of “cottage food product.”

A number of foods NDDH banned in the regulation would have been banned if SB 2269 had passed⁶. The judge noted in her opinion that “the Department does not cite to any legal authority establishing or even suggesting that if the Legislature fails to pass a law an agency wants, the agency can then enact the law on its own through the back door with rulemaking. Allowing such an end run directly undermines the clear legislative intent.”⁷

Judge Feland further stated, “Although the department claims that it has the general authority to enact rules governing food safety, the agency cannot adopt rules that contradict or conflict with an unambiguous act of the legislature. The Department’s power under the Cottage Food Law is limited to merely “providing assistance, consultation, or inspection, upon request, of a producer,” and conducting investigations upon complaints ⁶. Any general authority the Department has to regulate matters of health and food safety cannot extend to restricting the sale of homemade foods specifically allowed under the Cottage Food Act.

The hope is that NDDH going forward will work with cottage food producers to help them succeed rather than limiting the foods they can sell under the FFA. The food freedom laws passed in North Dakota, Wyoming, Utah, and some 80 Maine towns have been an unqualified success; as far as is known, not a single foodborne illness has been attributed to a producer operating under those laws.

With the COVID crisis and the resulting upheaval in the conventional food system, local food producers are more important than ever; the best way to increase their numbers is through the passage of laws at the state level allowing unregulated sales of food from local producers direct to consumers. The more local food producers there are, the safer the food supply, the stronger the local economy, the more self-sufficient communities will be in food production, and the better the health of the state’s residents.

Congratulations to the plaintiffs in the case, cottage food producers Danielle Mickelson, Lydia Gessele, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal as well as to Institute for Justice Attorneys Erica Smith and Tatiana Pino who provided their representation. Congratulations also to dairy farmer LeAnn Harner for her continued great work on behalf of North Dakota Food Freedom.

1. Conor Beck, “Victory for Food Freedom In North Dakota: Homemade Food Producers Restore Food Freedom to North Dakota”, Institute for Justice (ij.org); December 10, 2020. Accessed at https://ij.org/press-release/victory-for-food-freedom-in-north-dakota-homemade-food-producers-restore-food-freedom-to-north-dakota/

2. Pete Kennedy, “Governor Signs North Dakota Food Freedom Act”, Farm-to-Consumer Legal Defense Fund (farmtoconsumer.org); April 14, 2017. Accessed by https://www.farmtoconsumer.org/blog/2017/04/14/north-dakota-food-freedom-act-going-governor/

3. NDCC 23-09.5 “Cottage Food Production and Sales”, North Dakota Century Code, Title 23 Chapter 09.5, North Dakota Legislature website (legis.nd.gov). Accessed at https://www.legis.nd.gov/cencode/t23c09-5.pdf#nameddest=23-09p5-02

4. Pete Kennedy, “Victory in North Dakota: Food Freedom Act Intact”, A Campaign for Real Milk (realmilk.com); March 23, 2018. Accessed at https://www.realmilk.com/victory-north-dakota-nddh-withdraws-proposed-rules/

5. Pete Kennedy, “The Department of Control Strikes Again”, A Campaign for Real Milk (realmilk.com); April 2019. Accessed at https://www.realmilk.com/the-department-of-control-strikes-again/

6. “Bill Action for SB 2269”, North Dakota Legislative Branch website (legis.nd.gov). Accessed at https://www.legis.nd.gov/assembly/66-2019/bill-actions/ba2269.html

7. “Food Freedom Timeline”, North Dakota Food Freedom website (ndfoodfreedom.com). Accessed at https://www.ndfoodfreedom.com/timeline